New Delhi: If any evidence is required to show how the state is compromising institutional care for children when it is needed the most with COVID-19 fears raging across the country, it is this: Raman K. Gaur, senior consultant, legal division, National Commission for Protection of Child Rights (NCPCR) has written a letter to all the district magistrates/collectors of Karnataka on September 24 directing them to repatriate and restore children placed in the children’s homes.The Supreme Court on Friday has sought NCPCR’s and the Centre’s response to the concern expressed by amicus curiae Gaurav Agrawal, that the letter could be an attempt to dismantle institutional care for children as envisaged under the Juvenile Justice Act, 2015.NCPCR’s justification According to the NCPCR, the maximum number of child care institutions (CCIs) and children in need of care and protection (CNCP) placed in these homes are located in five southern states of the country, which paints an “unsettling picture indicating a pitiable condition of children in these CCIs”. “Such vast number of children being deprived of their natural homes and parents is matter of grave concern,” the letter sent by NCPCR says.The NCPCR, in its letter, cites the Supreme Court’s order issued on May 5, 2017 in Re: Exploitation of children in orphanages in State of Tamil Nadu v Union of India to emphasise that it is the need of the hour to de-institutionalise the children in need of care and protection. According to the NCPCR, the Supreme Court had expressed in that case that there was a dire need to understand that institutionalisation of CNCPs is not the only available option and alternative care in terms of foster care, adoption etc. must be explored, keeping in view the best interest of the child.The NCPCR has also relied on the Supreme Court’s interim order on April 3 in Suo Moto Writ Petition (c) No.4 of 2020 titled as In Re: Contagion of Covid 19 virus in Children Protection Homes, which came up for hearing before the court on Friday.In its April 3 order, according to the NCPCR, the court proposed that gatekeeping or preventive measures need to be considered and families counselled to ensure that institutionalisation is the last resort. The court had directed child welfare committees to inquire whether children should be kept in the CCI considering the best interest, health and safety concerns, the NCPCR has said.The NCPCR also cited in its letter Section 40 of the Juvenile Justice Act, 2015 which entrusts all the CCIs to take all steps for protection and restoration of children. Section 40(2) says that the CCI shall take such steps as are considered necessary for the restoration and protection of a child deprived of his family environment temporarily or permanently where such child is under their care and protection.Interpreting Section 40(2), the NCPCR said in its letter that it is aptly clear from the bare reading that the intent of the provision is not to give care and protection to a child living in a CCI, but efforts made should be more inclined to restore the child to a permanent home be it to his or her biological parents, guardians, foster care etc.Also read: Child Rights Activists Urge NCPCR to Withdraw Order on Emptying Child Care InstitutionsThe NCPCR also cited Section 3 of the JJ Act, 2015, which enumerates Principle XIII as follows: “Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.”Principle XII says that a child shall be placed in institutional care as a step of last resort after making a reasonable inquiry. Interpreting this principle, the NCPCR has said that every effort shall be inclined towards keeping the child with his/her biological parent or guardian and institutionalisation of such CNCP shall be opted after exhausting all other available options.In Paragraph 9 of its letter, the NCPCR said: “Due to limited resources available with the Commission, it is decided that this exercise will be conducted in phase-wise manner, starting from all districts of Tamil Nadu, Karnataka, Telengana, Maharashtra, Andhra Pradesh, Kerala, Meghalaya and Mizoram in first phase, where these CCIs are found more in concentration as compared to other States. The Commission has planned to then take this monitoring exercise further in other parts of the country.”In Paragraph 10, the NCPCR says that it will monitor this entire exercise until its thorough implementation and till every child in need of care and protection placed in these CCIs is repatriated and restored back to his or her family or be placed for adoption, foster care, etc.In Paragraph 11, the NCPCR has requested the collectors to immediately produce all CNCP staying in the CCIs before the concerned CWCs for their immediate repatriation and restoration.In Paragraph 12 [c], the NCPCR has observed that poverty cannot be assumed to be a justification for not repatriating and restoring the children by the CWCs.On Friday, the bench comprising Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi heard the case In Re: Contagion of Covid 19 Virus in Children Protection Homes, when the amicus curiae in the case, Gaurav Agrawal, brought to its notice the implications of the NCPCR’s letter to the district collectors of Karnataka.Amicus curiae’s noteIn his note submitted to the Supreme Court, Agrawal has underlined that the responsibility of taking care of the children in need of care and protection is inter alia on the CWC under Section 30 of the JJA, 2015, while there is no doubt about the principle of family responsibility and institutionalisation as a last resort.Agrawal brought to the bench’s notice that under Section 40(3), the CWC has power to restore the child after determining the suitability of parents or guardians or fit person to take care of the child.“In this view of the matter, the letter issued by NCPCR perhaps runs contrary to the statutory mandate conferred on the CWC under the JJA, 2015”, the amicus curiae’s note reads.In Paragraph 8 of Agrawal’s note, it has been pointed out that the present pandemic has rendered children even more vulnerable as it appears that cases of domestic abuse, child labour and child marriages are increasing and increasing poverty has led to a substantial increase in the number of children in need of care and protection. “It is submitted that the need for institutional care cannot be undermined. If there is any deficiency in the facilities available in the child care institutions, the same has to be addressed, rather than the repatriation of the children in CCIs,” the note reads.Also read: Part of Witch-Hunt, Says Harsh Mander After NCPCR Raids Children’s Homes Associated With HimIn Paragraph 9, the AC’s note says that many children are placed in CCIs due to poverty and incapacity of the parents to look after them. There are children who are orphaned, abandoned, surrendered, victims of child abuse, trafficking, child labour, child marriage and homelessness. For them, institutional care is the only resort, it adds.The AC’s note further explains that the Supreme Court’s interim order issued on April 3 was only a temporary measure to help contain the spread of pandemic and it cannot be cited by NCPCR to direct that the children should be restored disregarding the statutory scheme of the JJA, 2015.The bench has directed Additional Solicitor General Aishwarya Bhati to get instructions as to whether a general direction for repatriation and restoration of children placed in the children homes can be issued. The bench has also directed the NCPCR to submit its response to the AC’s note.The case will be listed again for hearing before the bench on November 24.